I DON’T NEED A TRUST, I WILL USE JOINT TENANCY TO AVOID PROBATE

This is a very common statement made to estate planning attorneys.  Many people will say the most significant asset they have is their home.  By simply listing their children on title as joint tenants, they will avoid probate when the pass.  This is an accurate statement.  When a joint tenant passes, the surviving joint tenant can prepare and record an Affidavit, Death of a Joint Tenant, attach the Death Certificate of the deceased joint tenant and the surviving joint tenant own the property.  While it is an accurate statement that the transfer to the surviving joint tenant will avoid probate, there are many pitfalls. 

The surviving joint tenant gets a carry-over basis in the property not a stepped-up basis.  In most cases, if the surviving joint tenant is a family member, they will get a stepped-up basis.  If there was a significant increase from the purchase price to the selling price, the surviving joint tenant could be forced to pay tens of thousands of dollars in capital gains they wouldn’t have had to pay if the got the property via trust. 

Let’s say a parent adds an adult child to their property as a joint tenant to avoid probate.  Guess what happens if the child gets a judgment against them?  The parent could easily lose their home because the actions of the adult child.  Here’s another issue; what happens if the child dies first? 

There are really no benefits to avoiding a comprehensive estate plan by using joint tenancy.  A comprehensive estate plan also includes the advance directives necessary to designate a loved one to make financial and medical decision on your behalf if you are incapacitated.